The Grateful Dead, the Fourth Amendment, and Good Lawyering

Although it almost got by me, earlier this week, I learned that last Friday marked the 50th anniversary of the arrest of Jerry Garcia and other members of the Grateful Dead down in New Orleans.  On the evening of January 31, 1970, the Dead played a show with Fleetwood Mac at the Warehouse in New Orleans.  After the show, the Dead went back to their hotel, only to find the police searching their hotel rooms pursuant to a search warrant.  According to reports that I read, police arrested a total of 19 people, and ultimately charged them with possession of various drugs and other unlawful items.  After posting bail, the Dead were nearly out of money, so they scheduled a bonus show for the purpose of raising money to hire lawyers to defend them.  Fortunately for the Dead, hiring good lawyers paid off; all charges were eventually dismissed and the experience inspired the Dead to write Truckin, including the line, “if you got a warrant, I guess you’re gonna come in.”

As white collar lawyers, we routinely deal with cases involving search warrants.  In fact, a major part of our pretrial motions practice involves litigating search warrant challenges.  Over the years, we have challenged search warrants involving searches of businesses, residences, vehicles, computers, and other devices.

But in the last few years, we have spent a great deal of time working on cases in which federal prosecutors have obtained search warrants to gather the entire contents of an individual’s email account, and other electronic data.  The search warrants federal prosecutors use in these cases involving searches for electronic data are different than typical search warrants in several ways.

Normally, in cases involving search warrants directed to internet service providers (“ISP”), the Government tries to obtain a warrant which directs the ISP to produce every single email in an individual’s email account, even if that email has no relevance to the matter under investigation.  Fortunately, some judges around the country have pushed back by declining to sign these warrants, concluding that warrants like this are nothing more than general warrants, which are plainly prohibited under the particularity clause of the Fourth Amendment.  Although other courts have agreed to sign these warrants, they have only done so after requiring the Government to adhere to strict search protocols, which, among other things, prohibit the Government from later relying upon the plain view doctrine if an incriminating document that is otherwise not subject to seizure is obtained.

Here in federal court in the Northern District of Georgia, our judges have not yet adopted a set of protocols that the Government must use when attempting to obtain search warrants for electronic data.  However, that has not stopped us from challenging these warrants on a number of Fourth Amendment grounds in our white collar cases.  In fact, in one matter we handled, the federal magistrate judge concluded that the agent that executed the warrant violated the Fourth Amendment by continuing to maintain all of the items produced by the ISP.  In another matter we handled, although the magistrate judge declined to suppress the evidence at issue, the filing of the motion to suppress and the subsequent litigation prevented the Government from any further searches of the materials at issue.

So far, we have thoroughly enjoyed learning about and being part of developing the law in this evolving area.  And without a doubt, we intend to “keep on truckin’” by continuing to challenge search warrants for electronic data in the future.  In the meantime, feel free to reach out to us if you need copies of our pleadings involving these and other issues or if you simply want to kick an issue around.